Comprehensive mobility of people

4.1.1.1 European Union(EU)

The EU provides comprehensive mobility of workers under the concept of

citizenship within the EU and broad definition of the workers. Turning first to the

citizenship, the EU views a moving individual not a factor of production but citizens

with intrinsic rights. Citizenship within the EU is provided in the Article 17 of the

Treaty of European Union: Every person holding the nationality of a Member State

shall be a citizen of the Union. Citizenship of the Union shall complement and not

replace national citizenship. And every citizen of the Union shall have the right to

move and reside freely within the territory of the Member States, subject to the

limitations and conditions laid down in this Treaty(Article 18). As regards to the

definition of the workers, it is broadly interpreted to include seasonal and frontier

workers, self-employed, service suppliers. Besides, job-seekers and trainees are

recognized as workers under the EU. Even though individuals are not employed, they

may move and live in another member state in search of employment for a reasonable

duration with the rights fully protected by Community Law. The trainees who are

enrolled in educational program are also considered as workers under the Law.³⁶

• Freedom of movement of workers(Article 39~42) : Freedom of movement for

workers secures the citizens of the EU the abilities:(a) to accept offers of employment

actually made;(b) to move freely within the territory of Member States for this

purpose;(c) to stay in a Member State for the purpose of employment in accordance

with the provisions...(d) to remain in the territory of a Member State after having been

employed in that State…. Discrimination based on the nationality against citizens’ of

the other member states as regards employment, remuneration and other conditions of

36 Christopher J. Cassise(1996)

employment are also abolished under this article.

• Right of Establishment (Article 43~47): The concept of the right of

establishment given to the natural and legal persons such as business units is also

broad in its coverage and application. It covers self-employed activities and includes

business undertakings ranging from main centers to branches or subsidiaries. This

article also takes in the right to be engaged in the business activity under the same

conditions laid down for its own nationals.

• Freedom to Provide Service (Article 49~55): Freedom to provide services is

provided to the activities of industrial and commercial characters, craftsmen and the

professions. Persons providing services on the temporal basis also included and all the

mentioned shall be under the same conditions as are imposed by that State on its own

nationals.

4.1.1.2 European Free Trade Association(EFTA)³⁷

The EFTA agreement contains a part for free movement of persons, services and

capital. It applies to workers, the self-employed and persons with no gainful

employment who otherwise have sufficient financial means, including under certain

37 The EFTA was established in 1960 and has been lasted for over 40 years for the cooperation among EFTA States. The existing four Member States are Iceland, Lichtenstein, Norway and Switzerland.

However, owing to the existence of EEA that applies to the three EFTA Member States other than Switzerland, EFTA mainly concerns the relations between Switzerland and the other three.

conditions their family members. It provides the right of access to work, entry/exit

and establishment(residence), the right to provide services for a period of up to 90

days per year and the right of equal treatment.³⁸ Beyond the legal framework, the

EFTA States will be coordinating the social security schemes in order to complement

the right to freedom of movement. It attempts to apply common principles and rules

so that the stumbling blocks to mobility of persons caused by different national

legislation will be removed. Moreover, the mutual recognition of professional

diplomas will be set up which further facilitate the movement of persons.

4.1.1.3 Agreement on the European Economic Area(EEA)³⁹

The EEA Agreement is concerned principally with the four fundamental pillars

(“the four freedoms”) of the Internal Market and one of them is freedom of movement

of persons, services and capital. Thus, the agreement secures the freedom of

movement for workers among EU Member States and EFTA States. It covers workers,

self-employed, service provider and entails the rights; to accept offers of employment;

38 http://secritariat.efta.int

39 EEA was originally negotiated between all the EFTA States and the EC and its member States and was signed in 1992. Subsequently, Switzerland decided not to join following a referendum, and three others joined the EU. The EEA Agreement entered into force on 1 January 2004.

to move freely within the territory of EU Member States and EFTA States; to stay and

remain in this region. Such a freedom of movement entails the abolition of any

discrimination based on nationality between workers of EU Member States and EFTA

States as regards employment, remuneration and other conditions of work and

employment(Article 28). These rights are subject to limitations on the grounds of

public policy or public health. The provision of article 28 does not apply to

employment in the public sectors.

4.1.1.4 Common Market for Eastern and Southern Africa(COMESA)

COMESA is the preferential agreement that came into force as of December 1994.

Its eventual goal is to create a fully integrated and internationally competitive and

unified region in which goods, services, capital and persons move freely⁴⁰. To move

ahead for the goal, COMESA has taken a four-stage program. It aims to establish full

Monetary Union involving the use of one common currency issued by a common

Central Bank by the year 2025. Along with this long-term, it focuses on trade

development and investment, specifically, the elimination of impediments to trade and

investment in short term. COMESA treaty includes chapters on free movement of

persons, labor, services, right of establishment and residence. It states the Member

40 http://www.comesa.int

States to agree ; to adopt…necessary measures in order to achieve progressively the

free movement of persons, labor and services and to ensure…the right of

establishment and residence by their citizens; to conclude a Protocol on the Free

Movement of Persons, Labor; to the Protocol on the Gradual Relaxation and Eventual

Elimination of Visa Requirements .